Citation Nr: 1702308
Decision Date: 01/27/17 Archive Date: 02/09/17
DOCKET NO. 13-27 220 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement service connection for the cause of the Veteran's death.
2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Daughter
ATTORNEY FOR THE BOARD
T. M. Gillett, Counsel
INTRODUCTION
The Veteran served on active duty from August 1943 to June 1945. He died in June 2009. The appellant seeks surviving spouse benefits.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Due to the appellant's place of residence, the RO in St. Petersburg, Florida, subsequently assumed jurisdiction.
In April 2012, the appellant testified at a hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of that hearing is of record.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The issue of entitlement to service connection for the cause of the Veteran's death is REMANDED to the Agency of Original Jurisdiction.
FINDINGS OF FACT
1. The Veteran died in June 2009.
2. The Veteran did not have a service-connected disability that was continuously rated as being totally disabling for a period of 10 or more years immediately preceding his death.
3. The Veteran did not have a service-connected disability that was continuously rated as being totally disabling for a period of not less than five years from the date of his discharge from service.
4. The Veteran was not a former prisoner of war.
CONCLUSION OF LAW
The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. Specifically, the appellant was notified in a letter dated in January 2012 of the requirements for substantiating a claim.
The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development.
If a Veteran's death is not due to a service-connected disability, a surviving spouse may still be entitled to DIC benefits in the same manner as if a Veteran's death were service-connected if a Veteran was, at the time of death, in receipt of, or entitled to receive, compensation for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of the Veteran's discharge or other release from active duty; or (3) the Veteran was a former prisoner of war, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (a) (2014).
The appellant is the Veteran's surviving spouse. At the time of the Veteran's death, he was service connected for an anxiety reaction, rated 70 percent; a deviated septum, rated 10 percent; and residuals of a sprain and laceration of the right knee, scars, and a benign tumor of the neck, each rated 0 percent. The Veteran had been continuously assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), since September 16, 2004. However, although VA rated the Veteran's service-connected disabilities as being totally disabling prior to his death, the service-connected disability was not continuously rated as being totally disabling for a period of 10 or more years immediately preceding his death in June 2009. Additionally, the Veteran did not have a disability that was continuously rated as being totally disabling for a period of not less than five years from the date of his discharge from service.
VA regulations allow for surviving spouses to receive DIC benefits if the Veteran was a former prisoner of war who had a disability that was continuously rated as being totally disabling for a period of not less than one year immediately preceding death. In a February 2010 statement, the appellant stated that the Veteran was a lieutenant who fought in five campaigns. She indicated that he was taken prisoner by the German military in Belgium during the Battle of the Bulge in 1942. She reported that he was tortured by the Germans who requested information he refused to divulge, even at the cost of the lives of some of his men. She stated that she did not know how long the Veteran was a prisoner for war.
The Veteran's personnel records indicate that the highest rank the Veteran attained during service was that of a private. The service medical records indicate that the Veteran was wounded at St. Lo, France, after which he was given psychiatric treatment for anxiety. The service medical records further indicate that the Veteran was declared unfit to continue serving in the infantry in October 1944 and was evacuated to England in November 1944. The records contain no notation suggesting that the Veteran returned to combat at any point after that November 1944 evacuation. The records also contain no notation, to include mentions of applicable awards, indicating that the Veteran was ever a prisoner of war. The service personnel and medical records contain no notation suggesting that the Veteran served in Belgium. Additionally, the Board takes judicial notice that the Battle of the Bulge began in December 1944. The Board finds that the Veteran's official service records have greater weight than the appellant's statement, suggesting that the Veteran became a prisoner of war during the Battle of the Bulge.
In her February 2010 statement, the appellant wrote that the Veteran had received a 100 percent disability pension at some point prior to 2005. The appellant also indicated that VA granted a 100 percent rating in 2005. She asked if the two periods during which the Veteran received a 100 percent rating could be combined so as to allow her to receive DIC benefits under 38 U.S.C.A. § 1318. The record indicates that the Veteran was granted a temporary 100 percent rating for the service-connected psychiatric disability due to hospitalization, effective from October 1981 to January 1982. VA later granted entitlement to TDIU, effective September 16, 2004. VA regulations do not allow for the combination of two distinct periods during which the Veteran was in receipt of 100 percent ratings to allow for the receipt of DIC benefits. The period of being rated totally disabled must be consecutive and immediately preceding death. Therefore, DIC benefits may not be granted in that manner.
Although the Board recognizes the Veteran's service on behalf of his country and is sympathetic with the appellant's loss of her husband, the Board is nonetheless bound by VA regulations. In this case, the applicable law passed by Congress does not provide a basis to award the benefit sought. Accordingly, the criteria for establishing entitlement to DIC benefits under 38 U.S.C.A. § 1318 have not been met. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (a) (2016).
ORDER
Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied.
REMAND
The Veteran's death certificate indicates that his primary cause of death was "malignancy of unknown primary." In a July 2009 telephone contact report, the appellant advised the Veteran's primary care doctor's office that the Veteran was diagnosed with cancer on June 1, 2009, and died within the month. The record contains no treatment records regarding that diagnosis or any subsequent care for cancer, to include any records from the hospice facility at which the Veteran died. A remand is necessary to attempt to obtain treatment records.
VA has not attempted to obtain a medical opinion regarding the possible etiology of the Veteran's fatal cancer. At the time of death, the Veteran was service-connected for a benign tumor of the neck. Additionally, the appellant has reported that the Veteran's service-connected psychiatric disability was of such severity that the Veteran was unable to cooperate with examiners who might have discovered his cancer when it was treatable. A remand is necessary to obtain medical opinions regarding the etiology of the Veteran's cancer.
Accordingly, the issue of entitlement to service connection for the cause of the Veteran's death is REMANDED for the following action:
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.
1. After obtaining any necessary releases, obtain and associate with the claims file all outstanding records of VA and private treatment for the Veteran's service-connected disabilities and the Veteran's cancer, to include any records from the office of the examiner who diagnosed the Veteran's fatal cancer and records from Tidewell Hospice and Palliative Care. Associate all records or responses received with the record. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available.
2. After obtaining the required records, provide the Veteran's claims file to a VA oncologist for an opinion regarding the etiology of the Veteran's fatal cancer. The examiner must review the record and should note that review in the report. A complete rationale should be given for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail.
The examiner is asked to provide the following opinions:
(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fatal cancer was caused by or related to a service-connected tumor of the neck, noted to be benign when service connection was granted in 1945?
(b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fatal cancer was caused or aggravated (permanently worsened beyond the natural progress of the disorder) by the service-connected tumor of the neck or any other service-connected disability?
3. Provide the Veteran's claims file to a VA psychiatrist for an opinion regarding the etiology of the Veteran's fatal cancer. The examiner must review the record and should note that review in the report. The examiner is to note the appellant's contentions that the Veteran's psychiatric disability was of such severity that the Veteran was unable to cooperate with examiners who might have discovered his cancer when it was treatable. A complete rationale should be given for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to provide the following opinions:
(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fatal cancer was caused by a service-connected psychiatric disability?
(b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fatal cancer was aggravated (permanently worsened beyond the natural progress of the disorder) by a service-connected psychiatric disability?
4. Then, readjudicate the claim on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs